Thursday, January 6, 2011

If a law has an aim, and it can be shown to result in the opposite of that aim, shouldn't the law be void? If mere expert testimony must meet certain standards of reliability under Daubert or Frye, shouldn't a far more prescriptive and coercive utterance such as a law meet even higher standards of reliability? For example, an expert testifies to some standard of practice in a torts trial. That expert is telling all practitioners in that jurisdiction the minimum required from them as a standard, under pain of civil liability. He is bossing all practitioners. The Supreme Court has set standards of reliability for such prescriptive testimony. Here is a legal resource on that standard of testimony:

http://www.daubertontheweb.com/

Now, the criminal law is far more prescriptive, bosses the entire population not just practitioners, and carries penalties that are harsh. (From the introduction of Section 2251, "Whoever, in the course of an offense under this section, engages in conduct that results in the death of a person, shall be punished by death or imprisoned for not less than 30 years or for life."

Then, shouldn't a law meet even more stringent criteria of reliability than mere influential expert testimony? If a law is meant to reduce child abuse by punishing its visual depiction and possession of such, but the opposite has taken place, shouldn't the law be voided as toxic and harmful itself. Here. Organized crime profits from high prices, and is the biggest beneficiary of the child pornography. Most of the child porn is produced in Eastern Europe, and one wonders about jurisdiction questions if the law is to prevent child abuse. May a US law have its biggest impact on foreign territory?

The law was passed in 1977. Since then, child sexual abuse has doubled, according to this review.

http://www.childwelfare.gov/pubs/statsinfo/nis3.cfm#national

In studies, porn consistently reduces the incidence of sexual crimes, including the sexual abuse of children.

According to this academic institute, pics of children playing in a bathtub can be indicative of pornography, kids at the beach, splashing, and fully clothed in swimwear, can be indicative.

http://en.wikipedia.org/wiki/Copine_scale

One suspects feminist lawyers and rent seeking. However, beyond that suspicion, shouldn't a law be scientifically valid or overturned? The law against child porn is an example, but this question applies to all law making. The Supreme Court has surprisingly or not surprisingly addressed scientific validity of laws or regulations only once to my knowledge.

And the Supreme Court ruled that a law need not be scientifically valid to be upheld (What the ...!@#?), allowing the EPA to classify carbon dioxide as a pollutant. It is allowing faith based law making, even in the face of evidence of opposite effects to the intent of the statute.

About Me

Supremacy Claus is a fictional character. The mother gave birth during a difficult Constitutional Law examination in law school. Supremacy has a younger brother, Establishment, and an older sister, Full Faith. The cousin is famous, Santa.